Obama and the Decline of the American Civil Liberties Movement

Below is today’s column in The Los Angeles Times on the record of Barack Obama on civil liberties and his impact on the civil liberties movement in the United States.

OBAMA: A DISASTER FOR CIVIL LIBERTIES

With the 2012 presidential election before us, the country is again caught up in debating national security issues, our ongoing wars and the threat of terrorism. There is one related subject, however, that is rarely mentioned: civil liberties.

Protecting individual rights and liberties — apart from the right to be tax-free — seems barely relevant to candidates or voters. One man is primarily responsible for the disappearance of civil liberties from the national debate, and he is Barack Obama. While many are reluctant to admit it, Obama has proved a disaster not just for specific civil liberties but the civil liberties cause in the United States.

Civil libertarians have long had a dysfunctional relationship with the Democratic Party, which treats them as a captive voting bloc with nowhere else to turn in elections. Not even this history, however, prepared civil libertarians for Obama. After the George W. Bush years, they were ready to fight to regain ground lost after Sept. 11. Historically, this country has tended to correct periods of heightened police powers with a pendulum swing back toward greater individual rights. Many were questioning the extreme measures taken by the Bush administration, especially after the disclosure of abuses and illegalities. Candidate Obama capitalized on this swing and portrayed himself as the champion of civil liberties.

However, President Obama not only retained the controversial Bush policies, he expanded on them. The earliest, and most startling, move came quickly. Soon after his election, various military and political figures reported that Obama reportedly promised Bush officials in private that no one would be investigated or prosecuted for torture. In his first year, Obama made good on that promise, announcing that no CIA employee would be prosecuted for torture. Later, his administration refused to prosecute any of the Bush officials responsible for ordering or justifying the program and embraced the “just following orders” defense for other officials, the very defense rejected by the United States at the Nuremberg trials after World War II.

Obama failed to close Guantanamo Bay as promised. He continued warrantless surveillance and military tribunals that denied defendants basic rights. He asserted the right to kill U.S. citizens he views as terrorists. His administration has fought to block dozens of public-interest lawsuits challenging privacy violations and presidential abuses.

But perhaps the biggest blow to civil liberties is what he has done to the movement itself. It has quieted to a whisper, muted by the power of Obama’s personality and his symbolic importance as the first black president as well as the liberal who replaced Bush. Indeed, only a few days after he took office, the Nobel committee awarded him the Nobel Peace Prize without his having a single accomplishment to his credit beyond being elected. Many Democrats were, and remain, enraptured.

It’s almost a classic case of the Stockholm syndrome, in which a hostage bonds with his captor despite the obvious threat to his existence. Even though many Democrats admit in private that they are shocked by Obama’s position on civil liberties, they are incapable of opposing him. Some insist that they are simply motivated by realism: A Republican would be worse. However, realism alone cannot explain the utter absence of a push for an alternative Democratic candidate or organized opposition to Obama’s policies on civil liberties in Congress during his term. It looks more like a cult of personality. Obama’s policies have become secondary to his persona.

Ironically, had Obama been defeated in 2008, it is likely that an alliance for civil liberties might have coalesced and effectively fought the government’s burgeoning police powers. A Gallup poll released this week shows 49% of Americans, a record since the poll began asking this question in 2003, believe that “the federal government poses an immediate threat to individuals’ rights and freedoms.” Yet the Obama administration long ago made a cynical calculation that it already had such voters in the bag and tacked to the right on this issue to show Obama was not “soft” on terror. He assumed that, yet again, civil libertarians might grumble and gripe but, come election day, they would not dare stay home.

This calculation may be wrong. Obama may have flown by the fail-safe line, especially when it comes to waterboarding. For many civil libertarians, it will be virtually impossible to vote for someone who has flagrantly ignored the Convention Against Torture or its underlying Nuremberg Principles. As Obama and Atty. Gen. Eric H. Holder Jr. have admitted, waterboarding is clearly torture and has been long defined as such by both international and U.S. courts. It is not only a crime but a war crime. By blocking the investigation and prosecution of those responsible for torture, Obama violated international law and reinforced other countries in refusing investigation of their own alleged war crimes. The administration magnified the damage by blocking efforts of other countries like Spain from investigating our alleged war crimes. In this process, his administration shredded principles on the accountability of government officials and lawyers facilitating war crimes and further destroyed the credibility of the U.S. in objecting to civil liberties abuses abroad.

In time, the election of Barack Obama may stand as one of the single most devastating events in our history for civil liberties. Now the president has begun campaigning for a second term. He will again be selling himself more than his policies, but he is likely to find many civil libertarians who simply are not buying.

Jonathan Turley is a professor of law at George Washington University.

[…] However, President Obama not only retained the controversial Bush policies, he expanded on them. The earliest, and most startling, move came quickly. Soon after his election, various military and political figures reported that Obama reportedly promised Bush officials in private that no one would be investigated or prosecuted for torture. In his first year, Obama made good on that promise, announcing that no CIA employee would be prosecuted for torture. Later, his administration refused to prosecute any of the Bush officials responsible for ordering or justifying the program and embraced the “just following orders” defense for other officials, the very defense rejected by the United States at the Nuremberg trials after World War II. […] In time, the election of Barack Obama may stand as one of the single most devastating events in our history for civil liberties. MORE […]

[…] However, President Obama not only retained the controversial Bush policies, he expanded on them. The earliest, and most startling, move came quickly. Soon after his election, various military and political figures reported that Obama reportedly promised Bush officials in private that no one would be investigated or prosecuted for torture. In his first year, Obama made good on that promise, announcing that no CIA employee would be prosecuted for torture. Later, his administration refused to prosecute any of the Bush officials responsible for ordering or justifying the program and embraced the “just following orders” defense for other officials, the very defense rejected by the United States at the Nuremberg trials after World War II. […] In time, the election of Barack Obama may stand as one of the single most devastating events in our history for civil liberties. MORE […]

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[…] President Obama of core civil liberties in the United States. I have previously written (See e.g.,here and here and here) about the harm caused to civil liberties by Obama as well as the harm he has […]

John Cusack replied (in part) to a comment of mine concerning “breaking Obama’s balls.” Now’s not the time is my singular point. And if timing is anything, that’s my disagreement. Cusack would argue “breaking balls” is required because of his love for The Constitution. So, I will attack the above by assuming it is all true. I know y’all are friends and enjoyed Prof. Turley’s dancing scene in Better Off Dead. So, without the constraints of a Tweet beak, here it goes…

Assuming arguendo everything Prof. Turley says is true, a legal realist (or the like) with a liberal core might argue now is not the time to make this case. Given the political realities — crazies who act irrationally and in bad faith — the real “disaster” would be an inability to recognize what SCOTUS would look like with Romney appointments and Ginsburg stepping down next term… Hell. The Dark Court. If one loves The Constitution, recognize the realities, play the hand, and wait. The political math doesn’t add up and sorry, that’s a sad and necessary corollary of law. Obama is a pragmatist, like Justice Roberts in a way (both taught by Prof. Tribe), and there is a realistic way to outflank the cons for a long time on The Court.

Like a poker game, and I’m mostly a CRIT, the only time to hit these issues are during the second term — The Turn & River.

No political playbook, if one agrees with the arguments Prof. Turley espouses, could, given the arena, be designed in the first term with the above arguments that would… work. In reality. Why? If Obama did shift the paradigm of executive power, or, the perception of that, to the areas presented above, it would cut out his ability to get reelected. If Republicans could credibly argue he is soft on these issues, the odds are Obama goes down. If he goes down, The Court does.

At the end of the day, I care about the balance of The Court. I grant out every argument above as true, but here’s the kicker — the paradox of law vitiates any realistic hope of pursuing them in the first term. The threat of Romney taking over and drastically changing the court to point where civil rights legislation gets struck down, The Commerce Clause is upended, and Roe overturned, trumps making the Prof’s arguments now. Less is more. The waiting is the hardest part, and, even if the president doesn’t fix these perceived holes in the second term, the balance still tips in his favor.

I respectfully dissent and would reserve judgment (very quietly) until the goods are in the bag. Trumpeting this cause with hyperbole won’t work in reality now, and, isn’t worth the risk to Obama politically by the superlongestshot.

Gotta Bad Man’s view of the law. Someone said that.

Also a conference on realism in Stockholm next month. Something about realism, growing a garden, but no guy named, “Chauncy.”